National Popular Vote Interstate Compact

The National Popular Vote Interstate Compact (NPVIC) is an agreement among a group of U.S. states and the District of Columbia to award all their electoral votes to whichever presidential candidate wins the overall popular vote in the 50 states and the District of Columbia. The compact is designed to ensure that the candidate who receives the most votes nationwide is elected president, and it would come into effect only when it would guarantee that outcome.[3][4] As of July 2020, it has been adopted by fifteen states and the District of Columbia, although it is suspended in Colorado.[2] Together, they have 196 electoral votes counting Colorado, which is 36% of the Electoral College and 73% of the 270 votes needed to give the compact legal force. Certain legal questions, however, may affect implementation of the compact.

National Popular Vote Interstate Compact
Status as of July 2020:
0
270
538

Each square in the cartogram represents one electoral vote.

  •   Enacted – 196 EVs (36.4% of Electoral College)*
  •   Pending – 64 EVs (11.9%)
  •   Neither enacted nor pending – 278 EVs (51.7%)[1]
  • | Threshold for activation – 270 EVs (>50%)

* Colorado's membership is suspended pending the outcome of a statewide referendum.[2]

DraftedJanuary 2006
EffectiveNot in effect
ConditionAdoption by states (including the District of Columbia) whose collective electoral votes represent a majority in the Electoral College. Note: The agreement would be in effect only among the assenting political entities.
Signatories
Agreement Among the States to Elect the President by National Popular Vote at Wikisource

Mechanism

Proposed in the form of an interstate compact, the agreement would go into effect among the participating states in the compact only after they collectively represent an absolute majority of votes (currently at least 270) in the Electoral College. In the next presidential election after adoption by the requisite number of states, the participating states would award all of their electoral votes to the candidate with the largest national popular vote total across the 50 states and the District of Columbia. As a result, that candidate would win the presidency by securing a majority of votes in the Electoral College. Until the compact's conditions are met, all states award electoral votes in their current manner.

The compact would modify the way participating states implement Article II, Section 1, Clause 2 of the U.S. Constitution, which requires each state legislature to define a method to appoint its electors to vote in the Electoral College. The Constitution does not mandate any particular legislative scheme for selecting electors, and instead vests state legislatures with the exclusive power to choose how to allocate their states' electors (although systems that violate the 14th Amendment, which mandates equal protection of law and prohibits racial discrimination, would be prohibited).[4][5] States have chosen various methods of allocation over the years, with regular changes in the nation's early decades. Today, all but two states (Maine and Nebraska) award all their electoral votes to the single candidate with the most votes statewide (the so-called "winner-take-all" system). Maine and Nebraska currently award one electoral vote to the winner in each congressional district, and their remaining two electoral votes to the state-wide winner.

The compact mandates a July 20 deadline every presidential election year, six months before Inauguration Day, to determine whether the agreement goes into effect for that particular election. A participating state may withdraw from the compact as long as it is before that deadline. The total number of electoral votes held by the participating states could also change due to congressional re-apportionment via the results of the U.S. Census or the admittance of a 51st state.[6]

Motivation
Elections in which the popular vote winner lost
ElectionElection WinnerPopular winnerDifferenceTurnout[7]
1824 Adams30.9%113,122Jackson41.4%157,27110.5%44,14926.9%
1876 Hayes47.9%4,034,311Tilden50.9%4,288,5463.0%254,23582.6%
1888 Harrison47.8%5,443,892Cleveland48.6%5,534,4880.8%90,59680.5%
2000 Bush47.9%50,456,002Gore48.4%50,999,8970.5%543,89554.2%
2016 Trump46.1%62,984,828Clinton48.2%65,853,5142.1%2,868,68660.1%

Reasons given for the compact include:

  • The current Electoral College system allows a candidate to win the Presidency while losing the popular vote, as happened in the elections of 1824, 1876, 1888, 2000, and 2016.[8] (The 1960 election is also a disputed example.[9]) In the 2000 election, for instance, Al Gore won 543,895 more votes nationally than George W. Bush, but Bush secured 5 more electors than Gore, in part due to a narrow Bush victory in Florida; in the 2016 election, Hillary Clinton won 2,868,691 more votes nationally than Donald Trump, but Trump secured 77 more electors than Clinton, in part due to narrow Trump victories in Michigan, Pennsylvania, and Wisconsin (a cumulative 77,744 votes).
  • State winner-take-all laws encourage candidates to focus disproportionately on a limited set of swing states (and in the case of Maine and Nebraska, swing districts), as small changes in the popular vote in those areas produce large changes in the electoral college vote. For example, in the 2016 election, a shift of 2,736 votes (or less than 0.4% of all votes cast) toward Donald Trump in New Hampshire would have produced a 4 electoral vote gain for his campaign. A similar shift in any other state would have produced no change in the electoral vote, thus encouraging the campaign to focus on New Hampshire above other states. A study by FairVote reported that the 2004 candidates devoted three quarters of their peak season campaign resources to just five states, while the other 45 states received very little attention. The report also stated that 18 states received no candidate visits and no TV advertising.[10] This means that swing state issues receive more attention, while issues important to other states are largely ignored.[11][12][13]
  • State winner-take-all laws tend to decrease voter turnout in states without close races. Voters living outside the swing states have a greater certainty of which candidate is likely to win their state. This knowledge of the probable outcome decreases their incentive to vote.[11][13] A report by the Committee for the Study of the American Electorate found that 2004 voter turnout in competitive swing states grew by 6.3% from the previous presidential election, compared to an increase of only 3.8% in noncompetitive states.[14] A report by The Center for Information and Research on Civic Learning and Engagement (CIRCLE) found that turnout among eligible voters under age 30 was 64.4% in the ten closest battleground states and only 47.6% in the rest of the country – a 17% gap.[15]

Debate
This section describes purported pros and cons of adopting the NPVIC; legal issues relating to its adoption are discussed in § Legality.

The project has been supported by editorials in newspapers, including The New York Times,[11] the Chicago Sun-Times, the Los Angeles Times,[16] The Boston Globe,[17] and the Minneapolis Star Tribune,[18] arguing that the existing system discourages voter turnout and leaves emphasis on only a few states and a few issues, while a popular election would equalize voting power. Others have argued against it, including the Honolulu Star-Bulletin.[19] Pete du Pont, a former Governor of Delaware, in an opinion piece in The Wall Street Journal, called the project an "urban power grab" that would shift politics entirely to urban issues in high population states and allow lower caliber candidates to run.[20] A collection of readings pro and con has been assembled by the League of Women Voters.[21] Some of the most common points of debate are detailed below:

Protective function of Electoral College

Certain founders conceived of the Electoral College as a deliberative body which would weigh the inputs of the states, but not be bound by them, in selecting the president, and would therefore serve to protect the country from the election of a person who is unfit to be president.[22] However, the Electoral College has never served such a role in practice. From 1796 onward, presidential electors have acted as "rubber stamps" for their parties' nominees. As of 2016, no election outcome has been determined by an elector deviating from the will of their state.[23] Journalist and commentator Peter Beinart has cited the election of Donald Trump, whom some, he notes, view as unfit, as evidence that the Electoral College does not perform a protective function.[24] Furthermore, thirty-two states and the District of Columbia have laws to prevent such "faithless electors",[25][26] and such laws were upheld as constitutional by the Supreme Court in Chiafalo v. Washington.[27] The National Popular Vote Interstate Compact does not eliminate the Electoral College or affect faithless elector laws; it merely changes the way in which electors are pledged by the participating states.

Campaign focus on swing states
Advertising and visits by major-party candidates during final stretch of the 2004 presidential campaign (Sept. 26 – Nov. 2, 2004)[28]
Spending on advertising per capita:
  •   < $0.50
  •   $0.50 – 1.00
  •   $1.00 – 2.00
  •   $2.00 – 4.00
  •   > $4.00
Campaign visits per 1 million residents:
  •   No visits
  •   0 – 1.0
  •   1.0 – 3.0
  •   3.0 – 9.0
  •   > 9.0

Under the current system, campaign focus – as measured by spending, visits, and attention paid to regional or state issues – is largely limited to the few swing states whose electoral outcomes are competitive, with politically "solid" states mostly ignored by the campaigns. The adjacent maps illustrate the amount spent on advertising and the number of visits to each state, relative to population, by the two major-party candidates in the last stretch of the 2004 presidential campaign. Supporters of the compact contend that a national popular vote would encourage candidates to campaign with equal effort for votes in competitive and non-competitive states alike.[29] Critics of the compact argue that candidates would have less incentive to focus on states with smaller populations or fewer urban areas, and would thus be less motivated to address rural issues.[20][30]

Disputed results and electoral fraud

Opponents of the compact have raised concerns about the handling of close or disputed outcomes. National Popular Vote contends that an election being decided on the basis of a disputed tally is far less likely under the NPVIC, which creates one large nationwide pool of voters, than under the current system, in which the national winner may be determined by an extremely small margin in any one of the fifty-one smaller statewide tallies.[30] However, it is possible for the national popular vote to be closer than the vote tally within any one state. In the event of an exact tie in the nationwide tally, NPVIC member states will award their electors to the winner of the popular vote in their state.[6] Under the NPVIC, each state will continue to handle disputes and statewide recounts as governed by their own laws.[31] The NPVIC does not include any provision for a nationwide recount, though Congress has the authority to create such a provision.[32]

Pete du Pont argues that "Mr. Gore's 540,000-vote margin [in the 2000 election] amounted to 3.1 votes in each of the country's 175,000 precincts. 'Finding' three votes per precinct in urban areas is not a difficult thing...".[20] However, National Popular Vote contends that altering the outcome via electoral fraud would be more difficult under a national popular vote than under the current system, due to the greater number of total votes that would likely need to be changed: currently, a close election may be determined by the outcome in just one "tipping-point state", and the margin in that state is likely to be far smaller than the nationwide margin, due to the smaller pool of voters at the state level, and the fact that several states may have close results.[30]

Suggested partisan advantage
Historical partisan advantage relative to the popular vote, demonstrating that neither major party holds a consistent advantage. (Positive values indicate a Republican advantage and negative values indicate a Democratic advantage.)[33]

Some supporters and opponents of the NPVIC believe it gives one party an advantage relative to the current Electoral College system. Former Delaware Governor Pete du Pont, a Republican, has argued that the compact would be an "urban power grab" and benefit Democrats.[20] However, Saul Anuzis, former chairman of the Michigan Republican Party, wrote that Republicans "need" the compact, citing what he believes to be the center-right nature of the American electorate.[34]

A statistical analysis by FiveThirtyEight's Nate Silver of all presidential elections from 1864 to 2016 (see adjacent chart) found that the Electoral College has not consistently favored one major party or the other, and that any advantage in the Electoral College does not tend to last long, noting that "there's almost no correlation between which party has the Electoral College advantage in one election and which has it four years later."[33] Although in all four elections since 1876 in which the winner lost the popular vote, the Republican became president, Silver's analysis shows that such splits are about equally likely to favor either major party.[33] A popular vote-Electoral College split favoring the Democrat John Kerry nearly occurred in 2004.[35]

New Yorker essayist Hendrik Hertzberg also concluded that the NPVIC would benefit neither party, noting that historically both Republicans and Democrats have been successful in winning the popular vote in presidential elections.[36]

State power relative to population
State population per electoral vote from the 2010 census

There is some debate over whether the Electoral College favors small- or large-population states. Those who argue that the College favors low-population states point out that such states have proportionally more electoral votes relative to their populations.[note 1][19][37] In the least-populous states, with three electors, this results in voters having 143% greater voting power than they would under purely proportional allocation, while in the most populous state, California, voters' power is 16% smaller than under proportional allocation. The NPVIC would give equal weight to each voter's ballot, regardless of what state they live in. Others, however, believe that since most states award electoral votes on a winner-takes-all system (the "unit rule"), the potential of populous states to shift greater numbers of electoral votes gives them more clout than would be expected from their electoral vote count alone.[38][39][40]

Opponents of a national popular vote contend that the Electoral College is a fundamental component of the federal system established by the Constitutional Convention. Specifically, the Connecticut Compromise established a bicameral legislature – with proportional representation of the states in the House of Representatives and equal representation of the states in the Senate – as a compromise between less populous states fearful of having their interests dominated and voices drowned out by larger states,[41] and larger states which viewed anything other than proportional representation as an affront to principles of democratic representation.[42] The Electoral College extends the Connecticut Compromise from the Legislative Branch to the Executive Branch by assigning each state a number of electoral votes equal to their representation in both the House of Representatives and the Senate. A national popular vote, opponents argue, would create an imbalance in the federal system by keeping the Connecticut Compromise for the Legislative Branch and removing it from the Executive Branch. The ratio of the populations of the most and least populous states is far greater currently (66.10 as of the 2010 Census) than when the Connecticut Compromise was adopted (7.35 as of the 1790 Census), exaggerating the non-proportional aspect of the compromise allocation.

Negation of state-level majorities

The three governors who have vetoed NPVIC legislation, Arnold Schwarzenegger of California, Linda Lingle of Hawaii, and Steve Sisolak of Nevada, objected to the compact on the grounds that it could require their states' electoral votes to be awarded to a candidate who did not win a majority in their state. (California and Hawaii have since enacted laws joining the compact.) Supporters of the compact counter that under a national popular vote system, state-level majorities are irrelevant; in any state, votes contribute to the nationwide tally, which determines the winner. The preferences of individual voters are thus paramount, while state-level majorities are an obsolete intermediary measure.[43][44][45]

Proliferation of candidates

Certain opponents of the compact contend that it would lead to a proliferation of third-party candidates, such that an election could be won with a plurality of as little as 15% of the vote.[46][47] However, evidence from U.S. gubernatorial and other races in which a plurality results in a win do not bear out this suggestion. In the 975 general elections for Governor in the U.S. between 1948 and 2011, 90% of winners received more than 50% of the vote, 99% received more than 40%, and all received more than 35%.[46] Duverger's law supports the contention that plurality elections do not generally create a proliferation of minor candidacies with significant vote shares.[46]

Legality

Constitutionality

Compact Clause

The Compact Clause of Article I, Section X of the United States Constitution states that "No State shall, without the Consent of Congress ... enter into any Agreement or Compact with another State".[48] In a report released in October 2019, the Congressional Research Service (CRS) cited the U.S. Supreme Court's ruling in Virginia v. Tennessee (1893) — reaffirmed in U.S. Steel Corp. v. Multistate Tax Commission (1978) and Cuyler v. Adams (1981)[49] — as stating that the words "agreement" and "compact" are synonyms, and that explicit congressional consent of interstate compacts is not required for agreements "which the United States can have no possible objection or have any interest in interfering with".[50] However, the report asserted, the Court required explicit congressional consent for interstate compacts that are "directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States" — meaning where the vertical balance of power between the federal government and state governments is altered in favor of state governments.

The CRS report states that "Whether the NPV initiative requires congressional consent under the Compact Clause first requires a determination as to whether NPV even constitutes an interstate compact."[51] Yale Law School professor Akhil Amar, one of the compact's framers, has argued that because the NPVIC does not create a "new interstate governmental apparatus" and because "cooperating states acting together would be exercising no more power than they are entitled to wield individually", the NPVIC probably does not constitute an interstate compact and cannot contravene the Compact Clause.[52] Conversely, the CRS report cites the Court's opinion in Northeast Bancorp v. Federal Reserve Board of Governors (1985) as suggesting that a requirement of a new interstate governmental entity is a sufficient but not a necessary condition to qualify an agreement as being an interstate compact under the Compact Clause.[51] Instead, the CRS report cites the Court's opinions in Virginia v. Tennessee and Northeast Bancorp as stating that any agreement between two or more states that "cover[s] all stipulations affecting the conduct or claims of the parties", prohibits members from "modify[ing] or repeal[ing] [the agreement] unilaterally", and requires "'reciprocation' of mutual obligations" constitutes an interstate compact. Noting that the NPVIC meets all of those requirements, the CRS report concludes that "the initiative can be described as an interstate compact."[51]

As part of concerns about whether the NPVIC would shift power from the federal government to state governments, at least two legal scholars have suggested that the NPVIC would require explicit congressional approval because it would remove the possibility of contingent elections for President being conducted by the U.S. House of Representatives under the 12th Amendment.[53][54] The CRS report notes that only two presidential elections (1800 and 1824) have been determined by a contingent election, and whether the loss of such elections would be a de minimis diminishment of federal power is unresolved by the relevant case law. The report does reference U.S. Steel Corp. v. Multistate Tax Commission as stating that the "pertinent inquiry [with respect to the Compact Clause] is one of potential, rather than actual, impact on federal supremacy" in that the potential erosion of an enumerated power of the U.S. House of Representatives could arguably require congressional approval.[50] Proponents of the compact counter that if removing the possibility of contingent elections is grounds for unconstitutionality, then Congress setting the size of the House at an odd number, as it did in 1911 (resulting in an odd number of electors until 1961), was also unconstitutional.[55][56]

The CRS report goes on to cite the Supreme Court's rulings in Florida v. Georgia (1855) and in Texas v. New Mexico and Colorado (2018) as recognizing that explicit congressional consent is also required for interstate compacts that alter the horizontal balance of power amongst state governments.[51] University of Colorado Law School professor Jennifer S. Hendricks has argued that the NPVIC would not alter the power of non-compacting state governments because all state governments would retain their right to select the electors of their choosing.[57] Bloomberg Law editor Michael Brody has argued that "the role of electors has yet to be defined by a court," and cites the Supreme Court ruling in Ray v. Blair (1952) as suggesting that the 12th Amendment does not require that electors must vote for the candidate to whom they are pledged. Brody notes that because the NPVIC only binds state legislatures and not electors, those electors would retain independent withdrawal power as faithless electors at the request of the compacting states, unless the compacting states adopt penalties or other statutes that bind the electors — which 11 of the 15 current member states and the District of Columbia currently do, in addition to 21 other states.[58][59] On July 6, 2020, the Supreme Court decided the case Chiafalo v. Washington, ruling that state laws that sanction faithless electors, including removal or other penalties, are constitutional.[60]

Other legal scholars have argued that the power of non-compacting states would be altered because, under the NPVIC, a state's power in determining the outcomes of presidential elections would be changed from the percentage of electors it has in the electoral college to the state's percentage of the popular vote, rendering the right of non-compacting state governments to appoint their own electors moot.[53][61][62][63] Additionally, Ian J. Drake, an associate professor of political science and law at Montclair State University, has argued that because Cuyler v. Adams held that congressional approval of interstate compacts makes them federal laws,[64] Congress cannot consent to the NPVIC without violating the Supremacy Clause, because under Article I, Section VIII, Congress has no enumerated or implied powers to alter the presidential election process except as part of the constitutional amendment process.[63][65] Labor lawyer Bradley T. Turflinger and the organizers of NPV Inc. dispute Drake's conclusion, and the NPV Inc. organizers have stated that they plan to seek congressional approval if the compact is approved by a sufficient number of states.[66][67] Citing Drake,[63] the CRS report concludes that if the NPVIC were to be enacted by the necessary number of states, it would likely become the source of considerable litigation, and it is likely that the Supreme Court will be involved in any resolution of the constitutional issues surrounding it.[51]

Plenary power doctrine

Proponents of the compact, such as law professors Akhil and Vikram Amar (the compact's original framers),[68] as well as U.S. Representative Jamie Raskin from Maryland's 8th congressional district (a former law professor),[69] have argued that state legislatures have the plenary power to appoint electors in accordance with the national popular vote under the Elections Clause of Article II, Section I,[70] which states that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress".[48] Vikram Amar, along with other legal scholars, have also cited the Supreme Court's rulings in McPherson v. Blacker (1892) and Arizona State Legislature v. Arizona Independent Redistricting Commission (2015) as recognizing that states have wide discretion in selecting the method by which they appoint their electors.[71][72][73]

However, the CRS report cites the Supreme Court's opinion in McPherson v. Blacker as stating that state legislatures have "conceded plenary power ... in the matter of the appointment of electors," and citing the Court's opinions in Williams v. Rhodes (1968) and Oregon v. Mitchell (1970) that struck down state laws concerning the appointment of electors that violated the Equal Protection Clause of the 14th Amendment, the CRS report concludes that a state's power to select the method by which its electors are appointed is not absolute.[74] Robert Natelson, a senior fellow at the libertarian Independence Institute in constitutional jurisprudence and a member of the conservative American Legislative Exchange Council's board of scholars, has also argued that a state legislature's power to appoint its electors cannot be absolute because otherwise states would be permitted to appoint their electors in a manner that would violate public trust (e.g. by holding an auction to sell their electoral votes to the highest bidder).[54] Natelson has also argued that US states' power to select electors must also be compatible in a substantive sense with the general US constitutional scheme for US presidential elections that gives smaller US states disproportionate weight relative to their population in selecting the US President.[54] The NPVIC would allegedly be incompatible with this general US constitutional scheme as a substantive matter (as opposed to as a formal matter) because it would de facto eliminate the disproportionate weight that smaller US states have relative to their population in selecting the US President.[54]

Additionally, the CRS report notes that while the Court's opinion in McPherson v. Blacker emphasized that the variety of state laws that existed shortly after the ratification of the Constitution indicates that state legislatures have multiple alternative "modes of choosing the electors", the Court did not identify selecting electors in accordance with the results of the national popular vote as one of them. This is because, according to the CRS report, there appears to be no evidence contemporaneous with the ratification of the Constitution of a state selecting its electors in such a manner, and the CRS report cites the Court's opinion in U.S. Term Limits, Inc. v. Thornton (1995) as concluding that states cannot exercise their enumerated powers under Article I or Article II in a way that would "effect a fundamental change in the constitutional structure" (except as outlined in Article V as part of the constitutional amendment process),[74] a view at least three legal scholars have argued applies for the NPVIC.[65][75][54]

Chiafalo v. Washington
Main article: Chiafalo v. Washington

On July 6, 2020 the Supreme Court unanimously ruled in the case Chiafalo v. Washington and the related case Colorado Department of State v. Baca that it is within a state's power to enforce laws that penalize so-called "faithless electors" or allow for their removal and replacement.[76] The decision reaffirmed the precedent from McPherson v. Blacker that states have plenary power to appoint electors and further decided that this power extends to the ability to bind electors to their pledges by stating, "Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does."[77] While not a direct ruling on the National Popular Vote Interstate Compact, the ruling that states may bind their electors to the state's popular vote is seen by some as strong precedent that states may choose to bind their electors to the national popular vote via their plenary appointment power.[78][79][80]

Voting Rights Act of 1965

A 2008 Columbia Law Review article by Columbia Law School student David Gringer suggested that the NPVIC could potentially violate Sections 2 and 5 of the Voting Rights Act of 1965 (VRA).[75] However, in 2012, the U.S. Justice Department Civil Rights Division declined to challenge California's entry into the NPVIC under Section 5 of the Act, and the October 2019 CRS report notes that the U.S. Supreme Court decision in Shelby County v. Holder (2013), which invalidated Section 4(b) of the VRA, has rendered Section 5 currently inoperable.[74] In response to Gringer's argument that the NPVIC would violate Section 2 of the VRA, FairVote's Rob Richie says that the NPVIC "treats all voters equally",[81] and NPV Inc. has stated "The National Popular Vote bill manifestly would make every person's vote for President equal throughout the United States in an election to fill a single office (the Presidency). It is entirely consistent with the goal of the Voting Rights Act."[82]

History

Public support for Electoral College reform

Public opinion surveys suggest that a majority or plurality of Americans support a popular vote for President. Gallup polls dating back to 1944 showed consistent majorities of the public supporting a direct vote.[83] A 2007 Washington Post and Kaiser Family Foundation poll found that 72% favored replacing the Electoral College with a direct election, including 78% of Democrats, 60% of Republicans, and 73% of independent voters.[84]

A November 2016 Gallup poll following the 2016 U.S. presidential election showed that Americans' support for amending the U.S. Constitution to replace the Electoral College with a national popular vote fell to 49%, with 47% opposed. Republican support for replacing the Electoral College with a national popular vote dropped significantly, from 54% in 2011 to 19% in 2016, which Gallup attributed to a partisan response to the 2016 result, where the Republican candidate won the Electoral College despite losing the popular vote.[85] In March 2018, a Pew Research Center poll showed that 55% of Americans supported replacing the Electoral College with a national popular vote, with 41% opposed, but that a partisan divide remained in that support, as 75% of self-identified Democrats supported replacing the Electoral College with a national popular vote, while only 32% of self-identified Republicans did.[86]

Proposals to abolish the Electoral College by amendment
Further information: United States Electoral College § Efforts to abolish or reform

Several proposals to abolish the Electoral College by constitutional amendment have been introduced in Congress over the decades. These efforts have, however, been hampered because a two-thirds vote in both the House and Senate are required to send an amendment to the states where ratification by three-fourths of the State legislatures or by conventions in three fourths of the states is required for it to become operative.

Interstate compact plan
Distribution of electoral votes following the 2010 Census

In 2001, Northwestern University law professor Robert W. Bennett suggested a plan in an academic publication to implement a National Popular Vote through a mechanism that would embrace state legislatures' power to appoint electors, rather than resist that power.[87] By coordinating, states constituting a majority of the Electoral College could effectively implement a popular vote.

Law professors (and brothers) Akhil Reed Amar and Vikram Amar defended the constitutionality of such a plan.[88] They proposed that a group of states, through legislation, form a compact wherein they agree to give all of their electoral votes to the national popular vote winner, regardless of the balance of votes in their own state. These state laws would only be triggered once the compact included enough states to control a majority of the electoral college (270 votes), thus guaranteeing that the national popular vote winner would also win the electoral college.

The academic plan uses two constitutional features:

  • Presidential Electors Clause, Article 2, section 1, clause 2, which gives each state the power to determine the manner in which its electors are selected.
  • Compact Clause, Article I, section 10, clause 3, under which it creates an enforceable compact.

The Amar brothers noted that such a plan could be enacted by the passage of laws in as few as eleven states and would probably not require congressional approval, though this is not certain (see § Constitutionality above).

Organization and advocacy

In 2006, John Koza, a computer science professor at Stanford, was the lead author of Every Vote Equal, a book that makes a detailed case for his plan for an interstate compact to establish National Popular Vote.[89] (Koza had previously had exposure to interstate compacts from his work with state lottery commissions after inventing the scratch-off lottery ticket.)[89] That year, Koza, Barry Fadem and others formed National Popular Vote, a non-profit group to promote the legislation. The group has a transpartisan advisory committee including former US Senators Jake Garn, Birch Bayh, and David Durenberger, and former Representatives John Anderson, John Buchanan, and Tom Campbell.[90]

By the time of the group's opening news conference in February 2006, the proposed interstate compact had been introduced in the Illinois legislature.[91] With backing from National Popular Vote, the NPVIC legislation was introduced in five additional state legislatures in the 2006 session.[92][93][94] It passed in the Colorado Senate[95] and in both houses of the California legislature before being vetoed by Governor Arnold Schwarzenegger.[96][97]

Adoption

In 2007, NPVIC legislation was introduced in 42 states. It was passed by at least one legislative chamber in Arkansas,[98] California,[43] Colorado,[99] Illinois,[100] New Jersey,[101] North Carolina,[102] Maryland, and Hawaii.[103] Maryland became the first state to join the compact when Governor Martin O'Malley signed it into law on April 10, 2007.[104]

NPVIC legislation has been introduced in all 50 states.[1] As of July 2020, the NPVIC has been adopted by fifteen states and the District of Columbia. Together, they have 196 electoral votes, which is 36.4% of the Electoral College and 72.6% of the 270 votes needed to give the compact legal force. As of July 2020, no Republican governor has signed the NPVIC into law.

In Nevada, the legislation passed both chambers in 2019, but was vetoed by Gov. Steve Sisolak on May 30, 2019.[105] In Maine, the legislation also passed both chambers in 2019, but failed the additional enactment vote in the House.[106] States where only one chamber has passed the legislation are Arizona, Arkansas, Michigan, Minnesota, North Carolina, Oklahoma, and Virginia. Bills seeking to repeal the compact in Connecticut, Maryland, New Jersey and Washington have failed.[107]


Total
Electoral
Votes of
Adoptive
States
'06
'07
'08
'09
'10
'11
'12
'13
'14
'15
'16
'17
'18
'19
'20
0
30
60
90
120
150
180
210
240
270
MD
NJ
IL
HI
WA
MA
DC
VT
CA
RI
NY
CT
CO
DE
NM
OR
← 196 (72.6% of 270)
270 electoral votes
First
legislative
introduction



Reapportionment
based on
2010 Census
History of state enactment of the NPVIC as of July 2020
Jurisdictions enacting law to join the National Popular Vote Interstate Compact
No.JurisdictionDate adoptedMethod of adoptionCurrent
Electoral
votes (EV)
1 MarylandApr 10, 2007Signed by Gov. Martin O'Malley[104]10
2 New JerseyJan 13, 2008Signed by Gov. Jon Corzine[108]14
3 IllinoisApr 7, 2008Signed by Gov. Rod Blagojevich[100]20
4 HawaiiMay 1, 2008Legislature overrode veto of Gov. Linda Lingle[109]4
5 WashingtonApr 28, 2009Signed by Gov. Christine Gregoire[110]12
6 MassachusettsAug 4, 2010Signed by Gov. Deval Patrick[111]11
7 D.C.Dec 7, 2010Signed by Mayor Adrian Fenty[112][note 2]3
8 VermontApr 22, 2011Signed by Gov. Peter Shumlin[113]3
9 CaliforniaAug 8, 2011Signed by Gov. Jerry Brown[114]55
10 Rhode IslandJul 12, 2013Signed by Gov. Lincoln Chafee[115]4
11 New YorkApr 15, 2014Signed by Gov. Andrew Cuomo[116]29
12 ConnecticutMay 24, 2018Signed by Gov. Dannel Malloy[117]7
13 ColoradoMar 15, 2019Signed by Gov. Jared Polis[118]9
14 DelawareMar 28, 2019Signed by Gov. John Carney[119]3
15 New MexicoApr 3, 2019Signed by Gov. Michelle Lujan Grisham[120]5
16 OregonJun 12, 2019Signed by Gov. Kate Brown[121]7
Total196
Percentage of the 270 EVs needed72.6%
For a detailed history of bills to adopt the compact, see § Bills.

Initiatives and referendums

In Maine, an initiative to join the National Popular Vote Interstate Compact began collecting signatures on April 17, 2016. It failed to collect enough signatures to appear on the ballot.[122][123] In Arizona, a similar initiative began collecting signatures on December 19, 2016, but failed to collect the required 150,642 signatures by July 5, 2018.[124][125] In Missouri, an initiative did not collect the required number of signatures before the deadline of May 6, 2018.[126][127]

A referendum in Colorado seeking to overturn the state's adoption of the compact is scheduled to appear on the November 2020 ballot; that state's membership is suspended pending the outcome of the referendum.[2][128]

Prospects

Psephologist Nate Silver noted in 2014 that all jurisdictions that had adopted the compact at that time were blue states, and that there were not enough electoral votes from the remaining blue states to achieve the required majority. He concluded that, as swing states were unlikely to support a compact that reduces their influence, the compact could not succeed without adoption by some red states as well.[129] Republican-led chambers have adopted the measure in New York (2011),[130] Oklahoma (2014), and Arizona (2016), and the measure has been unanimously approved by Republican-led committees in Georgia and Missouri, prior to the 2016 election.[131]

On March 15, 2019, Colorado became the first "purple" state to join the compact, though no Republican legislators supported the bill and Colorado had a state government trifecta under Democrats.[132]

Based on population estimates, some states that have passed the compact are projected to lose one or two electoral votes due to congressional apportionment following the 2020 Census, which then might increase the number of additional states needed to adopt the measure.[133]

Bills

Bills in latest session

The table below lists all state bills to join the NPVIC introduced or otherwise filed in a state's current or most recent legislative session.[107] This includes all bills that are law, pending or have failed. The "EVs" column indicates the number of electoral votes each state has.

State EVs Session Bill Latest Action Lower house Upper house Executive Status
 Delaware 3 2019–20 SB 22[134] Mar 28, 2019 Passed 24–17 Passed 14–7 Signed Law
 Florida 29 2020 HB 335[135] Mar 14, 2020 Died in committee — — Failed
SB 908[136] Mar 14, 2020 — Died in committee —
 Georgia 16 2019–20 SB 42[137] Feb 5, 2019 — Died in committee — Failed
 Kansas 6 2019–20 SB 115[138] May 21, 2020 — Died in committee — Failed
 Maine 4 2019–20 LD 418[139] Mar 14, 2019 Died in committee Died in committee — Failed
LD 816[106] Jun 19, 2019 Failed 66–76 Passed 19–16 —
Passed 77–69 Insisted 21–14
Enactment failed 68–79 Enacted 18–16
Enactment failed 69–74 Insisted on enactment
 Minnesota 10 2019–20 HF 1603[140] Apr 26, 2019 Died in committee — — Failed
HF 1941[141] Mar 27, 2019 Died in committee — —
HF 2117[142] Mar 18, 2019 Died in committee — —
HF 3237[143] Feb 13, 2020 Died in committee — —
SF 34[144] Jan 14, 2019 — Died in committee —
SF 189[145] Feb 11, 2019 — Died in committee —
SF 2227[146] May 1, 2019 Passed 73–58 Not voted[lower-alpha 1] —
SF 2984[147] Feb 11, 2020 — Died in committee —
 Mississippi 6 2020 HB 369[148] Apr 9, 2020 Died in committee — — Failed
 Missouri 10 2020 HB 1591[149] May 15, 2020 Died in committee — — Failed
HB 1949[150] May 15, 2020 Died in committee — —
HB 1988[151] May 15, 2020 Died in committee — —
 New Hampshire 4 2019–20 HB 541[152] Jan 8, 2020 In committee — — Pending
 North Carolina 15 2019–20 SB 104[153] Feb 25, 2019 — Died in committee — Failed
 Ohio 18 2019–20 HB 70[154] Feb 20, 2019 In committee — — Pending
 Pennsylvania 20 2019–20 SB 270[155] Jul 9, 2019 — In committee — Pending
 South Carolina 9 2019–20 H 3209[156] Jan 8, 2019 In committee — — Pending
H 4277[157] Mar 20, 2019 In committee — —
 Virginia 13 2020–21 HB 177[158] Feb 25, 2020 Passed 51–46 Postponed until 2021 — Pending
HB 199[159] Jan 31, 2020 Died in committee — —
SB 399[160] Jan 28, 2020 — Died in committee —
 West Virginia 5 2020 HB 4575[161] Jan 28, 2020 Died in committee — — Failed
 Wisconsin 10 2019–20 AB 185[162] Apr 9, 2020 Died in committee — — Failed
SB 197[163] Apr 9, 2020 — Died in committee —
  1. This omnibus bill was passed by the Senate without the NPVIC, then amended by the House to include it and sent to conference committee. However, it was not further considered before the legislature adjourned.

Bills receiving floor votes in previous sessions

The table below lists past bills that received a floor vote (a vote by the full chamber) in at least one chamber of the state's legislature. Bills that failed without a floor vote are not listed. The "EVs" column indicates the number of electoral votes the state had at the time of the latest vote on the bill. This number may have changed since then due to reapportionment after the 2010 Census.

State EVs Session Bill Lower house Upper house Executive Outcome
 Arizona 11 2016 HB 2456[164] Passed 40–16 Died in committee — Failed
 Arkansas 6 2007 HB 1703[165] Passed 52–41 Died in committee — Failed
2009 HB 1339[166] Passed 56–43 Died in committee — Failed
 California 55 2005–06 AB 2948[97] Passed 48–30 Passed 23–14 Vetoed Failed
2007–08 SB 37[43] Passed 45–30 Passed 21–16 Vetoed Failed
2011–12 AB 459[114] Passed 52–15 Passed 23–15 Signed Law
 Colorado 9 2006 SB 06-223[167] Indefinitely postponed Passed 20–15 — Failed
2007 SB 07-046[99] Indefinitely postponed Passed 19–15 — Failed
2009 HB 09-1299[168] Passed 34–29 Not voted — Failed
2019 SB 19-042[169] Passed 34–29 Passed 19–16 Signed Law
 Connecticut 7 2009 HB 6437[170] Passed 76–69 Not voted — Failed
2018 HB 5421[171] Passed 77–73 Passed 21–14 Signed Law
 District of Columbia 3 2009–10 B18-0769[172] Passed 11–0 Signed Law
 Delaware 3 2009–10 HB 198[173] Passed 23–11 Not voted — Failed
2011–12 HB 55[174] Passed 21–19 Died in committee — Failed
 Hawaii 4 2007 SB 1956[103] Passed 35–12 Passed 19–4 Vetoed Failed
Override not voted Overrode 20–5
2008 HB 3013[175] Passed 36–9 Died in committee — Failed
SB 2898[109] Passed 39–8 Passed 20–4 Vetoed Law
Overrode 36–3 Overrode 20–4 Overridden
 Illinois 21 2007–08 HB 858[176] Passed 65–50 Died in committee — Failed
HB 1685[100] Passed 64–50 Passed 37–22 Signed Law
 Louisiana 8 2012 HB 1095[177] Failed 29–64 — — Failed
 Maine 4 2007–08 LD 1744[178] Indefinitely postponed Passed 18–17 — Failed
2013–14 LD 511[179] Failed 60–85 Failed 17–17 — Failed
2017–18 LD 156[180] Failed 66–73 Failed 14–21 — Failed
 Maryland 10 2007 HB 148[181] Passed 85–54 Passed 29–17 Signed Law
SB 634[182] Passed 84–54 Passed 29–17
 Massachusetts 12 2007–08 H 4952[183] Passed 116–37 Passed —[184] Failed
Enacted Enactment not voted
2009–10 H 4156[185] Passed 114–35 Passed 28–10 Signed Law
Enacted 116–34 Enacted 28–9
 Michigan 17 2007–08 HB 6610[186] Passed 65–36 Died in committee — Failed
 Minnesota 10 2013–14 HF 799[187] Failed 62–71 — — Failed
 Montana 3 2007 SB 290[188] — Failed 20–30 — Failed
 Nevada 5 2009 AB 413[189] Passed 27–14 Died in committee — Failed
6 2019 AB 186[190] Passed 23–17 Passed 12–8 Vetoed Failed
 New Hampshire 4 2017–18 HB 447[191] Failed 132–234 — — Failed
 New Jersey 15 2006–07 A 4225[101] Passed 43–32 Passed 22–13 Signed Law
 New Mexico 5 2009 HB 383[192] Passed 41–27 Died in committee — Failed
2017 SB 42[193] Died in committee Passed 26–16 — Failed
2019 HB 55[194] Passed 41–27 Passed 25–16 Signed Law
 New York 31 2009–10 S02286[195] Not voted Passed — Failed
29 2011–12 S04208[196] Not voted Passed — Failed
2013–14 A04422[197] Passed 100–40 Died in committee — Failed
S03149[198] Passed 102–33 Passed 57–4 Signed Law
 North Carolina 15 2007–08 S954[102] Died in committee Passed 30–18 — Failed
 North Dakota 3 2007 HB 1336[199] Failed 31–60 — — Failed
 Oklahoma 7 2013–14 SB 906[200] Died in committee Passed 28–18 — Failed
 Oregon 7 2009 HB 2588[201] Passed 39–19 Died in committee — Failed
2013 HB 3077[202] Passed 38–21 Died in committee — Failed
2015 HB 3475[203] Passed 37–21 Died in committee — Failed
2017 HB 2927[204] Passed 34–23 Died in committee — Failed
2019 SB 870[205] Passed 37–22 Passed 17–12 Signed Law
 Rhode Island 4 2008 H 7707[206][207] Passed 36–34 Passed Vetoed Failed
S 2112[206][208] Passed 34–28 Passed Vetoed Failed
2009 H 5569[209][210] Failed 28–45 — — Failed
S 161[209] Died in committee Passed — Failed
2011 S 164[211] Died in committee Passed — Failed
2013 H 5575[212][213] Passed 41–31 Passed 32–5 Signed Law
S 346[212][214] Passed 48–21 Passed 32–4
 Vermont 3 2007–08 S 270[215] Passed 77–35 Passed 22–6 Vetoed Failed
2009–10 S 34[216] Died in committee Passed 15–10 — Failed
2011–12 S 31[217] Passed 85–44 Passed 20–10 Signed Law
 Washington 11 2007–08 SB 5628[218] Died in committee Passed 30–18 — Failed
2009–10 SB 5599[219] Passed 52–42 Passed 28–21 Signed Law
gollark: Buy ***PREMIUM*** pagination ***NOW***!
gollark: I suspect a bunch of my names would be stolen quite fast.
gollark: And that pagination will be hobbled for some inexplicable reason to 5 pages.
gollark: Don't be ridiculous. The TJ09 works in the cover of darkness.
gollark: What are they worth *now* then?

See also

Notes
  1. Each state's electoral votes are equal to the sum of its seats in both houses of Congress. The proportional allocation of House seats has been distorted by the fixed size of the House since 1929 and the requirement that each state have at least one representative, and Senate seats are not proportional to population. Both factors favor low-population states.[19]
  2. Neither chamber of the U.S. Congress objected to the passage of DC's bill during the mandatory review period of 30 legislative days following passage, thus allowing the District's action to proceed.

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